Friday, July 22, 2011

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

R. v. Stevens. An appeal on five summary convictions of the appellant - four counts of careless storage of a firearm and one count of careless storage of ammunition. Mr. Stevens lived in an apartment from which he was evicted, despite an agreement that he would not be evicted that he made with his landlord. When sheriff's officers arrived to carry out the eviction order, Mr. Stevens was not at home and when the sheriff's officers entered the apartment (which the superintendent opened for them), they found two closed gun cases which they did not open. They contacted police, who did open the cases and found firearms that were not properly stored or locked. When Mr. Stevens arrived at the apartment, he was arrested, and police then obtained a search warrant and found additional firearms and ammunition.

Mr. Stevens was convicted and appealed his summary convictions on the grounds that the search was illegal and a violation of his s.8 rights under the Charter of Rights and Freedoms, an argument he unsuccessfully advanced at trial. The Superior Court judge who heard his summary conviction appeal approached her analysis from the starting point that the search was presumptively unreasonable since it was warrantless, but then decided that the search was reasonable because, although it was warrantless, the officers did not enter his apartment to search but only discovered the gun cases in the incidence of their duties. Mr. Stevens appealed again, and the Crown did not oppose the appeal; both the trial and summary appeal judges considered the factual situation as novel and introducing new issues to the common law, and the Court of Appeal agreed and granted leave to appeal.

Mr. Stevens' argument was that the searches conducted by the officers were searches of his home conducted unlawfully. and that there were no exigent circumstances that justified the police opening the gun cases before obtaining a warrant. They also argued that the gun cases were not in "plain view," and that therefore the evidence of the guns should be excluded.

The Crown argued that the officers entered the apartment pursuant to their statutory duty, and thereafter conducted a lawful search of the apartment to provide the landlord with possession of the apartment free of persons and pets. When the police entered the apartment and opened the gun cases, argued the Crown, the apartment had become the landlord's possession and therefore the police had the landlord's consent to open the gun cases. (The Crown conceded that before the police opened the cases, they did not have grounds to apply for a search warrant and were not engaged in a criminal investigation.) Finally, the Crown argued, in any event the admission of the evidence would not bring the administration of justice into disrepute.

The Court of Appeal, considering the case, first disagreed with the trial judge by stating that Mr. Stevens indeed had a reasonable expectation of privacy within the apartment. He had abided by the terms of his agreement with the landlord and the execution of the eviction was a mistake, according to the landlord. Therefore, even though Mr. Stevens did not take steps to rescind the eviction, he still had a reasonable expectation of privacy in his apartment.

The Court then considered whether Mr. Stevens had a reasonable expectation of privacy in his gun cases. Even if the landlord had had true possession of the apartment, it was not necessary to open the gun cases; the gun cases were Mr. Stevens' property and therefore he had a privacy interest in them. The Court also took pains to distinguish this case from R. v. Wint, where an inventory search of an impounded car did not violate s.8 of the Charter, on the grounds that the privacy interest of a person's items kept within an apartment home, even after an eviction, is stronger than the privacy interest of items within a car. The Court also felt that the plain view doctrine was not of assistance to the police in this case.

The Court then considered the conduct of the sheriff's officers and police. Although the Court agreed that the sheriff's officers did not breach Mr. Stevens' s.8 Charter rights, the same could not be said of the police, who in the Court's view conducted an unlawful search by opening the gun cases when there was no exigent circumstance or threat of breach of the peace. The Court also stated that there was not even a basis for the police to obtain a search warrant simply because there were gun cases present in the apartment, and thus concluded that the conduct of the police therefore breached Mr. Steven's s.8 rights.

Finally, the Court considered whether the evidence should be excluded under s.24(2) and decided that, since the police's behaviour was without lawful authority and that Mr. Stevens has a high degree of expectation of privacy in his home, and finally that although the offence involved guns but not actual gun violence, that therefore the evidence should be excluded. The Court therefore set aside the convictions and entered verdicts of not guilty on all of Mr. Steven's charges. Read-the-whole-case rating: 4 for a novel privacy rights issue intersecting somewhat with landlord/tenant law.

Loat v. Howarth. Mr. Loat was a minority shareholder in Storetech, a UK-based customer analysis and software service for retail businesses. Storetech was founded by Mr. Howarth. In 2006, Mr. Loat and Mr. Howarth entered into negotiations to expand Storetech into the North American market. Mr. Loat became the COO of Storetech Ontario, which was incorporated for this purpose, in 2007. Parts of his agreement of employment stipulated that his employment could not be terminated on less than three months' notice, that the agreement substituted for any prior agreements, and that the parties agreed to settle legal disputes relating to the agreement in Ontario courts on a non-exclusive jurisdictional basis. Prior to the 2007 agreement, the parties had entered into a shareholders' agreement agreeing that legal disputes would be under exclusive English jurisdiction.

In 2009, Storetech Ontario terminated Mr. Loat's employment without notice and allegedly for cause. Mr. Loat promptly commenced action against Mr. Howarth, Storetech Ontario and Storetech UK for wrongful dismissal and various oppression remedy-related reliefs. The defendants counterclaimed against the plaintiff, but did not contest the choice of forum. In 2010, Mr. Loat moved for partial summary judgement on the wrongful dismissal. The defendants brought a cross-motion, seeking leave to amend their pleading to invoke the forum selection clause in the shareholders' agreement and to dismiss or stay the Ontario action on those grounds. The motion judge dismissed Mr. Loat's motion and granted the defendants' stay motion on jurisdictional grounds. Mr. Loat appealed both decisions.

The Court of Appeal agreed with the trial judge in regards to the dismissal of the motion for partial summary judgement, stating that there were too many disputed facts surrounding Mr. Loat's dismissal, particularly his entitlement to unpaid wages, to judge the issue on a summary basis. However, the Court disagreed with the stay order granted by the motion judge. The clause in the service agreement stating that Ontario courts would have non-exclusive jurisdiction allowed Mr. Loat to commence action in Ontario. The Court of Appeal pointed out that Canadian law favours the enforcement of forum selection clauses, and that accordingly all Mr. Loat had to demonstrate was that the forum selection clause in the service agreement was triggered. The Court also noted that the defendants had advanced their own claims in the Ontario action and had delayed for almost one year after the commencement of the action before attempting to amend their pleading to get the jurisdictional stay, and these were relevant factors weighing against granting a stay as the defendants had attorned to an Ontario action. The Court therefore dismissed the staying order. Read-the-whole-case rating: 2.

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of Wallace damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

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Wise Law Blogfeatures timely articles on legal developments in Canada and the United States, along with commentary on Canadian politics, American politics, technology and noteworthy current affairs.

Launched on April 5, 2005, Wise Law Blog also highlights key decisions of Canadian courts, with focus on Ontario Family Law, Ontario Employment Law and other areas of interest.

Garry J. Wise is primary contributor to Wise Law Blog. He is a Canadian litigation lawyer who practices with Wise Law Office,Toronto. He is a graduate of Osgoode Hall Law School and was called to the Ontario Bar in 1986.

Garry's colleagues at Wise Law Office, as well as occasional guest bloggers, also contribute to Wise Law Blog.

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